Friday, November 30, 2018

One year
ago, Bryan Schwartz Law, along with co-counsel Larry Organ and the California
Civil Rights Law Group, filed a rare racial harassment class action, because
use of the "N-word" and other harassment are so common at Tesla's
Fremont auto manufacturing plant. Today, after an in-depth investigation, the New
York Times published a feature discussing the disturbing pattern at Tesla.

The story begins:

Owen Diaz had seen swastikas in
the bathrooms at Tesla’s electric-car plant, and he had tried to ignore racist
taunts around the factory. "You hear, ‘Hey,
boy, come here,’ ‘N-i-g-g-e-r,’ you know, all this," said Mr. Diaz, who is
African-American.

Similar accounts of race harassment follow,
profiling a number of the witnesses in Bryan Schwartz Law’s case.

Wednesday, November 21, 2018

Tomorrow, many Americans will prepare their Thanksgiving feast from a box of assembled ingredients, opting to skip the crowded grocery store frenzy by ordering their Thanksgiving meal from a meal kit delivery service. However, customers may be left with a bad taste in their mouths to learn that many of the workers that assemble their meals are being subjected to unsafe, unlawful working conditions and unfairly compensated for their work.

That is the subject of a recent class action lawsuit filed in Northern California against Blue Apron, claiming that Blue Apron failed to pay workers overtime and failed to provide them with mandatory meal and rest breaks.

Meal kit delivery services are growing in popularity, and there are number of brands to choose from like Blue Apron, Martha and Marley Spoon, HelloFresh, or Sun Basket. Forbes reports the trend for these online meal-kit delivery services will continue, forecasting online sales of meal kits to top $10 billion by 2020, up from about $1 billion in 2015. These meal kit delivery services have capitalized on their success by reinventing dinner, making it easy and accessible for cooks of all skill levels.

However, there is one group of people who have plenty of complaints about this new industry: the workers.

Blue Apron employs over 1000 employees at their warehouse center in Richmond, California where nearly 8 million meal kits are assembled each month. Even under fair conditions, the job is difficult. Blue Apron workers assemble the perishable meal kit boxes inside warehouses kept at a temperature below 40 degrees. According to an investigative report by Buzzfeed, Blue Apron employees reported working 12 hour shifts, five to six days each week on the assembly line in order to meet production deadlines.

On October 5, 2018, a class action lawsuit was filed against Blue Apron in the Alameda County Superior Court, alleging that Blue Apron failed to properly pay its workers, failed to provide its workers with meal and rest breaks, and failed to provide workers with accurate itemized wage statements. The lawsuit covers all Blue Apron hourly employees that work/worked in California from October 5, 2014 to the present. Plaintiff and the putative class are represented by the Turley & Mara Law Firm, APLC. The case was removed to the United States District Court for the Northern District of California on November 19, 2018 (Fairley v. Blue Apron, Inc., Case No. 3:18-cv-07000).

If you believe you have been subjected to employment discrimination, unfair pay or unsafe working conditions, please contact Bryan Schwartz Law today.

“Ignorance of the law is no excuse,” particularly when it comes to an employer’s responsibility to pay its workers according to current wage laws. That’s the upshot from the California Court of Appeal’s opinion in Diaz v. Grill Concepts Services, Inc., 23 Cal. App. 5th 859 (2018).

In Diaz, the employer claimed its failure to pay timely its workers was not “willful” – an element of proof for a waiting time penalty claim under Labor Code § 203 – because the employer was purportedly unable “to locate” an amendment to a local Los Angeles ordinance. This amendment to the local wage law required employers to pay certain hotel workers a specific living wage which exceeded the state minimum wage law. The court was unpersuaded.

The court
explained several circumstances under which an employer’s failure to pay all
wages due upon termination or resignation are not “willful,” including: (1)
uncertainty in the law, (2) representations from a taxing authority that no
further payment is warranted, and (3) “the employer’s ‘good faith mistaken belief that wages are not owed’ grounded in a ‘good faith dispute,’ which exists when the ‘employer presents a defense, based in law or fact which, if successful, would preclude any recovery on the part of the employee.” Id. at 868. None applied in this case.

To the contrary, the “undisputed facts show that Grill Concepts suspected it was underpaying its employees and went so far as to confirm that the living wage law was in the midst of being amended, but then did nothing else.” Id. at 869. The employer just kept running the same web search which failed to produce information about the amended statute. Id. Because the employer ignored multiple, obvious ways to inform itself of a change in the living wage law, the court affirmed that the employer’s “inability to locate the amended ordinance does not preclude the finding that its failure to pay was willful” for purposes of establishing Labor Code § 203 waiting time penalty liability. Id. [1]

While it should not have taken a court of appeal to state the obvious, nevertheless, workers and workers’ advocates should find comfort in knowing that California courts will not allow an employer to bury its head in the sand to avoid properly paying its workers.

If your employer refuses to pay you earned wages because it claims not to know the law, please contact Bryan Schwartz Law for a free case evaluation to determine if we
can assist you.

[1] The court also rejected the employer’s argument that
the amended statute was unconstitutionally vague, in part because of “the
absence of any evidence that any other hotelier or restauranteur had any
problem reading the ordinance to pay its employees the proper living wage.” Id. at 873. In addition, the court
rejected the employer’s misreading of Labor Code § 203 as purportedly allowing
a trial court to waive waiting time penalties “for equitable reasons” when the
relevant statutory language lacks any such discretionary authority and instead
includes language mandating the imposition of such penalties upon a finding of
willful violation, as was the case here. Id.
at 874-75.

When a worker has the courage to step forward to assert his or her statutory rights - like the right to be paid the minimum wage and overtime under the federal Fair Labor Standards Act (FLSA) - he or she must be free from intimidation by corporate defendants. Courts must retain the prerogative to intervene on behalf of individuals and class and collective action members, to prevent wrongdoing companies from engaging in misleading and coercive communications with witnesses and potential claimants, designed to suppress participation in actions asserting important, protected rights.

In Acosta v. Austin Electrical Services, LLC, 322 F.Supp.3d 951 (D.Ariz. 2018), the District Court issued a preliminary injunction (among other things) striking declarations a company gathered in trying to beat back a FLSA lawsuit, because the declarations it gathered from its workers were based upon misleading communications. As in other similar cases against other companies, when it pressured employees into signing declarations to use in its defense, Austin Electrical did not tell the workers the details of the lawsuit, who was representing the workers, what they might stand to gain in the suit (recovering unpaid wages), or other important details. The company appealed to the Ninth Circuit Court of Appeal.

In the amicus brief supporting the U.S. Department of Labor, Bryan Schwartz Law, along with Nichols Kaster and Apollo Law, on behalf of the Impact Fund and a dozen other leading non-profits, detailed the many cases in which courts have properly exercised their authority to curtail defendants' improper conduct in lawsuits. For example, employers overreach when confronted by FLSA claims if they begin contacting alleged collective action members without providing them full and complete information about their rights, the lawsuit, and the employer's potentially adverse interests. In addition to describing the strong, historic protections for those asserting FLSA claims, and examples of employer practices that courts intervene to stop, the amicus brief details best practices to guide courts in ensuring robust protections for those bravely asserting wage claims.

Monday, October 1, 2018

Yesterday,
Governor Jerry Brown signed into law numerous amendments to the sexual
harassment provisions of the California Fair Employment and Housing Act
(“FEHA”). The bills were part of a wave of sexual-harassment-related
legislation resulting from the groundswell of public support for the #Metoo
movement. While the Governor vetoed many of the sexual-harassment-related bills
that made it to his desk, the signed bills provide important new protections
for employees in California. This blog post discusses some of these bills.I.SB 1300 clarifies
and expands employee rights under FEHA.

Governor Brown
signed SB 1300, a bill which
clarifies and strengthens the rights of employees who seek to shed light on
workplace harassment and other discrimination.

Perhaps most
importantly, SB 1300 clarifies the “severe or pervasive” legal standard for
proving sexual harassment claims (sexual, or otherwise, under the FEHA). Under the FEHA (and the federal Civil Rights
Act of 1964, Title VII), sexual harassment is actionable if the sexual conduct
is so “severe or pervasive” as to create a hostile work environment. “Severe or
pervasive” harassment alone triggers the action, unlike other discrimination
and retaliation claims, which may become actionable only if the employee
experiences a tangible loss or denial of job benefits. See 2 Cal. Code. Regs. § 11034, subd. (f); Meritor Sav. Bank,
FSB v. Vinson, 477 U.S. 57, 67-68
(1986); Lyle v. Warner Bros. Television Prods.,38 Cal.4th 264, 279, 284 (2006).

SB 1300 clarifies
that under FEHA’s “severe or pervasive” standard, “a single incident of
harassing conduct is sufficient to create a triable issue regarding the
existence of a hostile work environment if the harassing conduct has
unreasonably interfered with the plaintiff’s work performance or created an
intimidating, hostile, or offensive working environment.” Id. The legislature rejected the “stray remarks doctrine,” affirming the decision inReid v. Google, Inc., 50 Cal.4th 512 (2010) – in other words, a single harassing remark should not be dismissed as being merely a “stray remark,” for the purpose of assessing an employer’s liability. It is also no defense for an employer that a particular occupation may have had more frequent sexual commentary or conduct in the past (disapprovingKelley v. Conco Companies, 196 Cal.App.4th 191 (2011)). Indeed, the Legislature went so far as to declare expressly that: “Harassment cases are rarely appropriate for disposition on summary judgment.” Id., subd. (e) (citing and adoptingNazir v. United Airlines, Inc., 178 Cal.App.4th 243 (2009).

SB 1300 makes it
more likely that victims of sexual harassment will get their day in court. What
action may constitute “severe” or “pervasive” harassment has often been highly
contested in sexual harassment cases, and unfortunately, in the past, some
courts have ruled that workplace behavior that most women would find
abusive was neither “severe or pervasive.” For example, in Brooks v. City of San Mateo, 229 F.3d
917 (9th Cir. 2000) the Ninth Circuit Court of Appeals held that a single
incident in which a fellow employee touched a plaintiff's breast under her
sweater, while very offensive, did not rise to the level of “severe or
pervasive” harassment for which Title VII and FEHA offer a remedy. On this
basis, the appellate court upheld the district court’s grant of summary
judgment for the employer, which meant that the plaintiff’s claims could not
proceed to trial. Notably, last year, Alex Kozinski, who penned Brooks, stepped down from his seat on
the Ninth Circuit rather than face an investigation into complaints of
harassment by numerous women, including his former employees. SB 1300 expressly
overturns Brooks’s nauseating “single
grope” rule for claims brought under FEHA. Gov’t Code § 12923, subd. (b).

B.Employers have a duty to
prevent third party harassment of all stripes.

SB 1300 creates liability
for employers who fail to prevent unlawful harassment of employees by
non-employees where the employer knew or should have known of the discrimination
and failed to take appropriate remedial action. This provision now extends not only to sexual
harassment, but all forms of harassment based on a protected status. Gov’t Code §
12940.

C.Employers may not obtain
costs for plaintiffs’ worthy FEHA claims.

FEHA authorizes a
court in certain circumstances and in its discretion to award the prevailing
party in a civil action reasonable attorney’s fees and costs, including expert
witness fees. California Code of Civil Procedure section 998 permits defendants
to recover defense costs if a jury awards a smaller award to the plaintiff than
the defendant previously offered in settlement. A defendant’s section 998 offer
in a FEHA case used to have the effect of exerting pressure on a plaintiff to
accept a settlement rather than face the prospect of covering defendant’s
costs, even if the plaintiff prevailed at trial.

SB 1300 provides that
a defendant may only receive fees and costs, regardless of any settlement offer, if a case is “frivolous, unreasonable, or
groundless when brought, or the plaintiff continued to litigate after it
clearly became so.”
Gov’t Code § 12965, subd. (b). The new law allows plaintiffs with worthy claims
to seek their day in court without worrying about being on the hook for
defendants’ fees and costs.

SB 1300 prohibits employers
from requiring employees to sign non-disparagement agreements as well as
release of claims agreements as a condition of employment, continued employment, a raise, or bonus. Gov’t Code §
12964.5. These provisions will prevent employers from coercing or tricking employees into signing agreements that effectively silence them discussing workplace harassment or that strip them of their right to bring a claim under FEHA.II.SB 820 prohibits
confidentiality provisions in sexual harassment settlements.

It has become a
common practice for employers to condition settlement of sexual
harassment disputes on a complaining employee’s silence. Going forward, such
provisions are expressly void and unenforceable for claims that have been filed
in an administrative action or in court. SB 820prohibits
employers from conditioning settlement of certain claims of sexual assault,
sexual harassment, or harassment or discrimination on the employee’s silence. The bill does allow for a provision that shields the identity of the claimant and all facts that could lead to the discovery of his or her identity, including pleadings filed in court to be included within a settlement agreement upon the request of the claimant. However, this provision does not apply if a government agency or public official is a party to the settlement agreement. This
bill extends to disputes beyond the employment context, and takes effect on
January 1, 2019.III.AB 3109 voids contracts and
settlement provisions that seek to waive a party’s right to testify in a government proceeding concerning alleged criminal
conduct or sexual harassment.

AB 3109 makes void and unenforceable any contract or settlement provision that waives a party’s right to testify in an
administrative, legislative, or judicial proceeding concerning alleged criminal
conduct or alleged sexual harassment, when the party has been required or requested
to attend the proceeding. Civil Code § 1670.11. Like SB
1300 and SB 820, AB 3109 frees employees who have experienced sexual harassment
and others to share their experiences with the public. This law takes effect on
January 1, 2019.IV.SB 1343 brings sexual
harassment training to more workplaces.

Employers of five
or more employees, including temporary or seasonal employees, are now required
to provide at least two hours of sexual harassment training to supervisory
employees and at least one hour of sexual harassment training to non-supervisory employees by January 1, 2020, and every two years thereafter. See SB 1343;
Gov’t Code §§ 12950, 12950.1. This is a major expansion of FEHA’s sexual
harassment training requirements, as the law previously extended training only
to supervisory employees of employers with fifty or more employees. This
expansion recognizes the value of educating all employees that they have a
right to work in an environment free of sexual harassment and associated
retaliation.V.Conclusion

In the words of
Martin Luther King, Jr. “Darkness cannot drive out darkness; only light can do
that.” California’s new laws will ensure that more victims of workplace harassment
and others have their day in court and can more freely shed light on problems that persist in California workplaces.

If you have been a victim of sexual harassment or unwanted sexual advances in the workplace, please contact Bryan Schwartz Law today.

The Wage Justice Center fights for economic justice on behalf of low-wage workers in California. The non-profit organization specializes in piercing corporate shell games to hold employers accountable when they commit wage theft.

Bryan Schwartz Law regularly represents low-wage workers in wage and hour class actions. The firm seeks swift relief for its clients, and pursues justice for as long as it takes. One of the firm’s signature cases involves wage violations at restaurants in Los Angeles and Orange County, in which the wealthy owner of a defunct business attempted to shield himself from personal liability for the business’s wage violations. After workers filed the class action suit, the employer immediately fired the named plaintiff, later closed his restaurants, and filed for personal and corporate bankruptcy. During nearly eight years of litigation, Bryan and his firm won over $1.5 million in back wages, damages, penalties, fees and costs from the individual employer on behalf of the terminated employee (whose wage loss was determined to be $3,000) after victories in bankruptcy court, a bench trial, a jury trial, several trips to the Court of Appeal, and collections proceedings. See Quiles, et. al. v. Koji’s Japan, Inc. et al. (Orange Cnty. Sup. Ct.) Case No. 30-2010-00425532. (Read more about the Quiles trial here)The firm continues its fight for the class of restaurant employees who suffered wage violations, after securing a major victory at the court of appeals. In Turman, et al., v. Superior Court (2017) 17 Cal.App.5th 969, California’s Fourth District Court of Appeal, Division Three (in Orange County), held that an individual owner and president of a closely-held corporation may be personally liable in a lawsuit to recover overtime, meal and rest period premiums, tip compensation, and minimum wages under California law. Turman provides the first published state appellate interpretation of Martinez v. Combs (2010) 49 Cal.4th 35, the California Supreme Court’s marquee decision on the definition of an “employer,” as it applies to personal rather than corporate liability. On remand, the Superior Court recently ruled that the individual owner of the restaurants was may be liable as a joint employer with respect to the class claims under the Labor Code, Wage Orders, Business & Professions Code, and Private Attorneys’ General Act. (Read more about the Turman decision on our blog here and here).“I am honored that the Wage Justice Center has recognized my firm’s dogged representation of restaurant workers in the Quiles/Turmanlitigation with the 2018 Attorney Advocate Award,” says Bryan Schwartz. “I have the greatest admiration for my clients – who for eight years have continued this fight to seek justice on behalf of their co-workers.”For more information about Bryan Schwartz Law, please contact Bryan Schwartz at Bryan@BryanSchwartzLaw.com.

When
a worker stands in the shoes of the State of California, prosecuting wage
violations under the Labor Code Private Attorneys’ General Act (PAGA), that
representative plaintiff cannot be forced into arbitration, because the State
did not agree to arbitrate. See Iskanianv. CLS Transportation of Los Angeles, LLC,
59 Cal.4th 348 (2014).

PAGA
civil-enforcement claims invoking Labor Code §558 include both the default
civil penalty plus the penalty concerning underpaid wages. Lawson created a split with Esparza
v. KS Industries, 13 Cal.App.5th 1228 (5th Dist. Aug. 2, 2017), which held
that Labor Code §558(a)’s reference to a penalty including “an amount
sufficient to recover underpaid wages” created a “private dispute,” to which
the Iskanian rule does not apply.

Bryan Schwartz
Law’s brief on CELA’s behalf demonstrates that Lawson was correctly decided, and Esparza was wrong, because all PAGA actions are representative
actions, not individual actions. The amicus brief illuminates the breadth of
the State’s police power, which cannot be limited by a mandatory, pre-dispute
arbitration agreement with an individual worker. The language, legislative
history, and purposes of PAGA and Labor Code §558 demonstrate the Legislature’s
clear intent to permit PAGA plaintiffs to recover the full measure of relief
that would be available to the State in a public enforcement action. Defendant
ZB Bank’s contention that PAGA and Labor Code §558 would be preempted by the
Federal Arbitration Act (FAA), 9 U.S.C. §§1, et seq., clearly contravenes the Supreme Court’s analysis in Iskanian and McGillv. Citibank, N.A.
(2017) 2 Cal. 5th 945. The FAA does not strip the State of its enforcement
authority, or strip employees of their non-waivable, substantive state law
right to pursue vital workplace protections.

The California
Supreme Court’s decision in Lawson will
have widespread ramifications for California workers. If the State’s PAGA
penalty provisions forcing restitution to victims of wage theft can be shunted
to individual arbitration, it will deeply undermine PAGA’s goal to strengthen
the State’s enforcement power against wage law violators who steal from workers
and unfairly compete against law-abiding businesses.

If you are seeking
to assert wage claims representing your co-workers and are facing an employer
who seeks to force you into individual arbitration, contact Bryan Schwartz Law.

Thursday, July 26, 2018

Though the U.S. Supreme Court’s recent decision in Janus v. AFSCME dealt a major blow to workers, and the nomination of Brett Kavanaugh to the high court might mean more devastation will follow, California has once again claimed its position as a progressive counter to an oppressive federal agenda. The California Supreme Court’s ruling today in Troester v. Starbucks Corp. defends the interests of working people by ensuring greater protection for those who regularly perform small amounts of uncompensated work - which add up to valuable unpaid wages, over time.

The plaintiff, a Starbucks employee named Douglas Troester, has argued Starbucks owes him wages for the time he spent running end-of-day computer software, activating a building alarm, locking the door, and walking coworkers to their cars as required by company policy. All of these duties, alleges Troester, add up to four to ten additional minutes each shift. Over a seventeen-month period, Troester’s unpaid time totaled twelve hours and fifty minutes, adding up to $102.67 at the then-applicable minimum wage of $8 per hour.

Troester first filed his case in Los Angeles County Superior Court, but Starbucks removed the case to federal court, and the district court granted summary judgment for Starbucks based on the federal “de minimis” doctrine. First set forth in the 1946 U.S. Supreme Court decision, Anderson v. Mt. Clemens Pottery Co., the de minimis doctrine holds that employers need not compensate employees for small amounts of otherwise compensable time if the employer can show tracking that time is administratively difficult. On appeal, the Ninth Circuit recognized that although the de minimis doctrine applied to federal wage and hour law, the California Supreme Court had never addressed whether the doctrine applied to wage claims under California law. The California Supreme Court agreed to the Ninth Circuit’s request to answer specifically whether the doctrine applied to claims for unpaid wages under California Labor Code sections 510, 1194, and 1197.

In today’s decision, the California Supreme Court first held that, based on a review of the relevant statutes and Industrial Wage Commission (“IWC”) Orders, California had not previously adopted the federal de minimis doctrine. The California Supreme Court, explains the decision, must interpret the Labor Code and IWC Orders liberally to best further their purposes. And, the Court held, California is free to offer greater protection to workers than federal regulations, which the state already has done, regarding, for example, on-call employees’ compensation for sleep and other personal activities (Mendiola v. CPS Security Solutions, Inc., 60 Cal.4th 833 (2015)), the definition of “employ” (Martinez v. Combs, 49 Cal.4th 35 (2010)), and transportation time (Morillion v. Royal Packing Co., 22 Cal.4th 575 (2000)).

Second, the Court held the relevant IWC Order and statute did not permit application of the de minimis doctrine to the particular facts of Troester’s case. For one, the Court explained, the modern availability of class actions undermines the rationale behind the de minimis rule for wage and hour actions. “The very premise” of wage and hour class actions, stated the Court, “is that small individual recoveries worthy of neither the plaintiff’s nor the court’s time can be aggregated to vindicate an important public policy.” The Court also found that the rationale behind the de minimis rule in Anderson is less relevant now because time-keeping technology has advanced far beyond what it was seventy years ago. The problems of recording employee time discussed in Anderson “may be cured or ameliorated by technological advances that enable employees to track and register their work time via smartphones, tablets, or other devices,” explained the Court. Although the Court found the de minimis doctrine did not apply to Troester’s case, it left open the possibility that certain circumstances may exist where compensable time is “so minute or irregular that it is unreasonable to expect the time to be recorded.”

The phrase “de minimis” comes from the longer maxim de minimis non curat lex, meaning “the law does not concern itself with trifles.” In this case, Starbucks argued the additional time Troester worked was insignificant. But while $102.67 may be insignificant to a multinational corporation, Justice Liu defended common sense and the dignity of working people in writing that $102.67 “is enough to pay a utility bill, buy a week of groceries, or cover a month of bus fares. What Starbucks calls ‘de minimis’ is not de minimis at all to many ordinary people who work for hourly wages.”

The lawsuit now returns to the Ninth Circuit, which will factor in the California Supreme Court’s decision when it rules on Troester’s case. We hope that fairness for working people will prevail, as it did today in our state’s high court.

Tuesday, July 10, 2018

UPDATE (September 13, 2018): For a comprehensive review of the many reasons to oppose the nomination of Brett Kavanaugh to the United States Supreme Court, please read this statement from the Leadership Conference on Civil and Human Rights.

There is always hope.

Even when Brett Kavanaugh – who voted in favor of forcing a
child to give birth in federal lockup against her will - is nominated to serve for an anticipated 30-40 years as a Justice of the
Supreme Court of the United States.

Even if this same man believes the President is above the law, meaning he or she can commit any crime he or she wants without anyone
being able to do anything about it while the President is in office.

The reason for maintaining hope? As President Barack Obama noted
in his farewell speech, it’s certainly not the Constitution alone, which is “just
a piece of parchment. It has no power on its own.”

There is hope because we resist. We give the Constitution “meaning
with our participation and with the choices that we make and the alliances that
we forge. Whether or not we stand up for our freedoms, whether or not we
respect and enforce the rule of law, that's up to us.”

In this spirit, this firm has come to you before to oppose what was then a threat to our constitutional system, poised to take
root.

We ask you to stand with us again because we no longer just face
the prospect of a threat. Instead, we are in the midst of the most dangerous
attack on our cherished rights since the late 19th and early 20th
centuries, when the Supreme Court wrongly decided that bakers working in nauseating,
filthy conditions should have the “freedom” to work for less than minimum wage (in
Lochner v. NY) (see also http://bryanschwartzlaw.blogspot.com/2018/06/the-us-supreme-court-exploits-first.html),
when the Supreme Court endorsed “separate but equal” conditions that led millions
of African-Americans to live under the oppression of Jim Crow laws for decades
(in Plessy v. Ferguson), and
when the Supreme Court gave its seal of approval to prison camps for Japanese-American
citizens based solely upon their national origin (in Korematsu v. US; George Takeitalks about his experience living through internment by his own government here).

If you believe in fair wages, equal dignity under the law, and women’s right to control their own bodies,
then you should join one of these Strategic Resistance Groups:

Sister District Project: This
organization seeks to flip state legislatures blue, a vital step
in ensuring fair redistricting come 2020.

Flip the 14:
This organization seeks to flip every single U.S. Congress seat
up for grabs in California.

Working America: This
organization canvasses flippable districts in California.

Local Indivisible groups:
Indivisible is setting up a national phone bank this Sunday, July
15 to reach progressive voters in flippable senate districts so that
Democrats can retake the Senate in November.

I know you are exhausted. We and our families, friends, and neighbors
are too. But we cannot and must not forget, there is no one coming to save us.
No one else will fix what has been broken nor protect what remains except you,
me, and the people who will stand with us in this moment.

We are the ones we have been waiting for. We cannot afford
to wait any longer.

Thursday, June 28, 2018

With its decision yesterday
inJanus v. American Federation of State,
County, and Municipal Employees, Council 31,
No. 16-1466 (U.S. June 27, 2018),
the U.S. Supreme Court marches forward in its sweeping campaign to erode workers’
rights to engage in protected concerted activity. See, e.g., Epic Systems Corp.
v. Lewis, 584 U.S. ___ (2018) (holding that an arbitration agreement can
bind an employee to individual arbitration and thereby prevent that worker
from participating in class or collective action) (read our analysis of the
decision here). In a 5-4 opinion, authored by Justice
Alito, with Justice Kagan dissenting (joined by Justices Ginsburg, Breyer, and
Sotomayor), the Court held that state government workers who choose not to join
a union do not have to pay a share of union dues for covering the cost of
negotiating and administering collective bargaining agreements. The Court’s
decision overrules its long-standing precedent in Abood v. Detroit Board of Education, 431 U.S. 209 (1977), which required
non-union employees to pay a portion of union dues, known as “agency fees,” to
cover the out-of-pocket costs of collective bargaining and prevent “free
riders” (i.e., workers who get the
benefits of a union contract, like higher wages, better healthcare insurance, and
competitive retirement plans without paying for it). Such mandatory agency
fees do not fund any type of political campaigning by the union.

In Janus,
the Supreme Court found that an Illinois law, which required public employees
benefiting from union-organized collective bargaining agreements, to pay agency
fees violated non-members’ free speech rights. Janus, No. 16-1466, at *1. The Court majority held that unions, in
their “political and ideological projects” (including negotiating for better
working conditions) may come at odds with a worker’s beliefs, and thereby
violate a worker’s First Amendment rights.
Id. The majority reasoned that requiring public employees to pay union dues
would be “compelling” the worker to “subsidize” the speech of other private
third party in violation of First Amendment. Id. at *9.

Justice Kagan, joined by the three other
dissenting Justices, eloquently spoke to the majority’s radical departure from
the Court’s established precedent:

There is no sugarcoating today’s opinion.
The majority overthrows a decision entrenched in this Nation’s law—and in its
economic life—for over 40 years. As a result, it prevents the American people,
acting through their state and local officials, from making important choices
about workplace governance. And it does so by weaponizing the First Amendment,
in a way that unleashes judges, now and in the future, to intervene in economic
and regulatory policy.

Departures from stare decisis are supposed to be “exceptional action[s]” demanding
“special justification,” (citation omitted)—but the majority offers nothing
like that here. In contrast to the vigor of its attack on Abood, the majority’s discussion of stare decisis barely limps to the finish line. And no wonder: The
standard factors this Court considers when deciding to overrule a decision all
cut one way. Abood’s legal
underpinnings have not eroded over time: Abood
is now, as it was when issued, consistent with this Court’s First Amendment
law. Abood provided a workable
standard for courts to apply. And Abood
has generated enormous reliance interests. The majority has overruled Abood for no exceptional or special
reason, but because it never liked the decision. It has overruled Abood because it wanted to. Id. at **26-27.

The First Amendment in 1977 was the same as
it is today, and yet, the Supreme Court again tramples on long-established
American public policy favoring workplace peace and shared prosperity through collective
bargaining between labor and management—one of few remaining mechanisms for workers
to stand toe-to-toe with employers. The Court, despite its “pull-your-boots-up”
philosophy, now gives “free-riders” the right to reap the fruits of hard-fought
collective bargaining without chipping in anything.

Even conservative legal experts like Eugene
Volokh agree that the majority’s opinion fails to reckon with the many ways in
which “the First Amendment ‘simply do[es] not guarantee that one’s hard-earned
dollars will never be spent on speech one disapproves of.’” Dissent at p. 15; Eugene
Volokh, Why There’s No First Amendment
Problem With Compulsory Union Agency Fees, (published Jan. 29, 2018), available at: https://reason.com/volokh/2018/01/19/why-theres-no-first-amendment-problem-wi.
Were it otherwise, the Court would be compelled to upend many other well-entrenched
arrangements where the government requires mandatory fees to subsidize various
activities it believes serve an important governmental interest but which
individuals may oppose, such as mandatory bar dues for attorneys, certain
administrative fees for public university students, and, more generally, taxes
spent on controversial governmental activities.

The Janus
opinion is another example of the Roberts Court “turning the First Amendment
into a sword, and using it against workaday economic and regulatory policy.”
Slip. Op., Dissent at 27. Working people should remember this decision as they
head to the ballot box this November.

Tuesday, June 26, 2018

Today, in Trump v. Hawaii, No. 17-965 (U.S. Jun. 26, 2018), the Supreme Court has enshrined Donald Trump’s bigotry into our nation’s jurisprudence. In a 5-4 decision, the Court reversed a preliminary injunction against the third iteration of President Trump’s travel ban. The Court determined the preliminary injunction was an abuse of discretion and remanded the case for further evaluation on its merits. But further proceedings are unlikely to change the Court’s result, which found the travel ban permissible under the Immigration and Nationality Act (INA) and the First Amendment’s Establishment Clause despite Trump’s vehemently anti-Muslim motivation for the ban.

The travel restrictions, established in Presidential Proclamation No. 9645, claimed to protect national security by restricting the flow of nationals from eight foreign countries the Trump administration labeled as having deficient systems for managing and sharing information about their nationals. See Trump, slip op. at 3. These nations originally included Chad, Iran, Iraq, Libya, North Korea, Syria, Venezuela, and Yemen, all of which are majority Muslim except for North Korea and Venezuela. See Trump, slip op. at 5.

In his opinion, Chief Justice Roberts found the plain language of § 1182(f) of the INA granted the President wide-ranging power to restrict which foreign nationals may enter the United States. Section 1182(f) provides that the President can “suspend the entry of all aliens or any class of aliens” whenever he “finds” their entry “would be detrimental to the interests of the United States.” See Trump, slip op. at 11. According to the Chief Justice, the President had presented sufficient evidence showing that the entry of those covered by the ban into the country would be “detrimental” to the national interest. See Trump, slip op. at 10.

But the crux of the debate focused on whether or not the anti-Muslim rhetoric surrounding the travel ban ran afoul of the Establishment Clause, which forbids government policies “respecting an establishment of religion.” U.S. Const., Amdt. 1. Accordingly, the government “may not adopt programs or practices . . . which aid or oppose any religion.” Epperson v. Arkansas, 393 U.S. 97, 106 (1968). But for Chief Justice Roberts, only laws that “lack any purpose other than a ‘bare . . . desire to harm a politically unpopular group’” are illegitimate under the Court’s deferential standard. See Trump, slip op. at 33 (citing Dep’t of Agric. v. Moreno, 413 U. S. 528, 534 (1973)). Despite the anti-Muslim rhetoric coming from the Trump administration, the Chief Justice held that the Court could not strike the travel ban “because there is persuasive evidence that the entry suspension has a legitimate grounding in national security concerns, quite apart from any religious hostility.” Trump, slip op. at 34.

In her forceful dissent, Justice Sotomayor catalogues in laboring detail the substantial record of the travel ban’s anti-Muslim purpose, including Trump’s statement “calling for a total and complete shutdown of Muslims entering the United States” that remained on his campaign website several months into his Presidency. Trump, slip op. at 4 (Sotomayor, J., dissenting). Over the course of seven pages, Justice Sotomayor details myriad other egregious statements, including Trump’s December 2015 comment analogizing his ban to the internment of Japanese-Americans during World War II and Trump’s February 2016 repetition of an apocryphal story to a cheering crowd in South Carolina about how U.S. General John J. Pershing executed Muslim insurgents with bullets dipped in pigs’ blood. See Trump, slip op. at 5 (Sotomayor, J., dissenting). Justice Sotomayor rightfully points out the absurdity of Chief Justice Roberts finding an insufficient level of animus to strike down the travel ban in the face of Trump’s statements, his refusal to retract them, and his insistence that his second Executive Order was simply a “watered down version of the first one.” Trump, slip op. at 8 (Sotomayor, J., dissenting).

Justice Sotomayor also calls out the hypocrisy of the Court’s decision today in light of its decision earlier this month in MasterpieceCakeshop, Ltd. v. Colorado Civil Rights Commission, No. 16-111 (U.S. Jun.4, 2018). While the majority in Masterpiece Cakeshop found state commissioners’ hostile comments about Christianity to be evidence of unconstitutional government action, the majority here renders Trump’s statements, far more numerous and hateful than in Masterpiece Cakeshop, to be irrelevant. See Trump, slip op. at 26 (Sotomayor, J., dissenting). A clear message emerges from these two decisions: a different First Amendment applies to Christianity than to Islam.

The Court’s decision today disturbingly parallels the Court’s horrific approval of interning Japanese-Americans during World War II in Korematsu v. U.S., 323 U. S. 214 (1944). See Trump, slip op. at 26-28 (Sotomayor, J., dissenting). In a move to legitimize today’s decision, Chief Justice Roberts explicitly condemns Korematsu, saying it was “gravely wrong the day it was decided.” See Trump, slip op. at 38. But the Court has not truly abandoned Korematsu. It has only repackaged the same xenophobia for a new era. And one day, Justice Sotomayor’s dissent will be praised by the judiciary as having the same foresight and moral clarity as Justice Jackson’s dissent in Korematsu. Until then, we keep fighting.

In 2012, Jack Phillips, owner of the
bakery Masterpiece Cakeshop outside of Denver, refused David Mullins and
Charlie Craig a wedding cake because he believed creating a cake for a same-sex
wedding violated his religious beliefs. (Slip Op. at 1). Mullins and Craig
filed a charge under the Colorado Anti-Discrimination Act, which prohibits discrimination
based on sexual orientation in any “place of business engaged in any sales to
the public and any place offering services . . . to the public.” (Slip Op. 5). The
Colorado Civil Rights Commission sided with Mullins and Craig, and the Colorado
Court of Appeals affirmed. (Slip Op. at 8).

In Masterpiece Cakeshop, Justice Kennedy acknowledges “[o]ur society
has come to the recognition that gay persons and gay couples cannot be treated
as social outcasts or as inferior in dignity and worth.” (Slip Op. at 9). But
the Court still sided with Phillips, finding that the state had not met its obligation
of religious neutrality. (Slip Op. 2). Instead of giving Phillips “neutral and
respectful consideration,” the Court found the Commission exhibited anti-religious
hostility in violation of the Free Exercise Clause. (Slip Op. at 9). Especially
troubling to Justice Kennedy were the comments of one Commissioner who likened
Phillips’s position to defenses of slavery and the holocaust and disparaged
Phillips’s religious beliefs as “despicable” and merely “rhetoric.” (Slip Op.
at 13-14). Justice Kennedy also took issue with the Commission’s treatment of
Phillips compared to secular bakers who had refused to bake cakes with
homophobic messages in other discrimination claims. (Slip Op. at 14-16).

By reversing the lower court on these
narrow grounds, the Supreme Court avoided ruling on the case’s main issue of to
what extent religious freedom can justify discrimination based on sexual
orientation. “The outcome of cases like this in other circumstances must await
further elaboration in the courts,” writes Justice Kennedy. (Slip Op. at 18). While
his motivation is unclear, limiting the decision to the case’s particular facts
may be an attempt to prevent further polarization in an already divided
culture.

But even with its narrow holding,
Masterpiece Cakeshop will negatively shape
the debate over LGBTQ rights as the issue returns to lower courts. Most
significant may be Justice Kennedy’s broad definition of “hostility.”In their dissent, Justices Ginsburg and Sotomayor criticize Justice
Kennedy’s conclusion that statements made by one or two Commissioners can taint
proceedings involving “several layers of independent decisionmaking, of which
the Commission was but one.” (Slip Op. at 7). Finding such a low level of “hostility”
violates the state’s obligation of religious neutrality expands on Lukumi Babalu Aye v. City of Hialeah, 508
U.S. 520 (1993), the only case cited by Justice Kennedy as support. Lukumi involved only one decisionmaking body,
compared to several in Masterpiece
Cakeshop, and anti-religious animus motivated the passing of an entire law,
not just a couple of a law’s enforcers. (Slip Op. at 7-8). As a result, Masterpiece Cakeshop may embolden those discriminating
based on sexual orientation to seek redress in court by claiming that their
animus against gay people is based upon religion.

The Supreme Court has dealt LGBTQ rights a blow
with Masterpiece Cakeshop. But the
wound is not fatal, and the widespread “recognition that gay persons and gay
couples cannot be treated as social outcasts” provides hope that the civil
rights of the LGBTQ community will prevail as the substantive issues of law
return to the lower courts.

If you have experienced discrimination based upon your sexual orientation or gender identity and need help, please contact Bryan Schwartz Law.